Confused with Marshall's wording in Marbury v. Madison

[joejoe123]

The Judiciary Act of 1789 gave the Supreme Court the ability to issue a writ of mandamus if under original jurisdiction, not appellate. Madison thought the definition of what constitutes original jurisdiction as it is laid out in the Constitution was not broad enough to legitimize a writ of mandamus. He makes it clear that in order for the court to issue the writ of mandamus, it must be shown to be an exercise of appellate jurisdiction. But then he writes:

"It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and therefore seems not to belong to appellate, but to original jurisdiction."

It seems that here he is saying the writ would apply under original jurisdiction, which is why I'm confused. At first I thought I was misinterpreting something, but according to MSN Encarta:

"Marbury had asked for the writ of mandamus under the Judiciary Act of 1789. Section 13 of that act authorized the Supreme Court to issue writs of mandamus as part of the Court's original jurisdiction, rather than after an appeal from a lower court. However, the Constitution specifically provides that only a small number of cases can actually begin at the Supreme Court. Article III, Section 2, of the Constitution states, “In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction …” Marshall concluded that Congress had exceeded its authority by giving the Supreme Court the power to issue a writ of mandamus as part of its original jurisdiction. Marshall argued that the Constitution was very specific about what constituted the original jurisdiction of the Court. He concluded that the provisions of the Constitution were exclusive—that is, the Constitution stated what was permissible and by its silence indicated what was not permissible. Anything not specified in Article III, Section 2, must come to the Court through an appeal from a lower court."

Can someone clear this up for me? Thanks.

[Top Cat]

You are either:

A) On the wrong board- there is a board for current 1Ls.  This is not it.

or...

B) A confused pre-gunner who has not taken heed to the constant "you can't prepare for law school" advice administered by... well everyone.

If the answer is A, you can go back to the main LSD page and get re-directed.  If the answer is B... well, I just hope I never have a class with you.

[mbw]

1) OP, ignore the poster above.  Not all LSDers are so rude.

2) Do you have access to a copy of the E&E for ConLaw?  I haven't read mine yet, but just cracking the table of contents indicates a whole chapter on Marbury v. Madison.  However, most people I've read recommend Chemerinsky for ConLaw, so perhaps that's your best choice to get a clearer on the implications of the case.

[Top Cat]

I'm rude?  Maybe...

Still, you wouldn't go to a political message board and start up a thread over who should be the starting QB for the Broncos... it is a fine question, but the board wouldn't be the right audience to answer it.  By the very definition of this board's title (Soon-to-be 1Ls), we have not yet begun law school.

I apologize for the tone of my earlier post... but the headings are there for a reason.

[mbw]

I'm rude?  Maybe...

Still, you wouldn't go to a political message board and start up a thread over who should be the starting QB for the Broncos... it is a fine question, but the board wouldn't be the right audience to answer it.  By the very definition of this board's title (Soon-to-be 1Ls), we have not yet begun law school.

I apologize for the tone of my earlier post... but the headings are there for a reason.

This is a board for soon-to-be-1Ls.  Whether you chose to prepare for 1L or not, there will be others who do so.  Some a little, a la getting familiar with some of the key cases, including Marbury v. Madison (and others listed in a thread on LSD,) some, a lot, a la PLSII.  This is a perfectly appropriate place to ask such questions.

[CTL]

Gunners!

[mbw]

Gunners!

See, you should be praying I don't join you in Ithaca

[CTL]

This is true...

[joejoe123]

Oh haha, I just picked this board because it said "general", and the others seemed focused on specific topics. I guess the "soon-to-be 1Ls" heading attracted me, too, since I am a soon-to-be, yet, I was more just curious about Marbury in general. I wasn't trying to prepare for law school - how would this be done, anyway?

The reason I ask is because my constitutional law book from undergrad sheds no light on my particular question, and I can't find anything else online. I'm thinking the whole "Although, therefore" phrase is what's tripping me up.

[joejoe123]

Ah, you know what, I just read Marshall's opinion again with a clearer head, and I think I've got it.